Citation Nr: 0303970
Decision Date: 03/07/03 Archive Date: 03/18/03
DOCKET NO. 97-26 165 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to a temporary total disability rating pursuant
to 38 C.F.R. § 4.29 because of hospital treatment in excess
of twenty-one days for a service connected disability during
the period from December 6, 1996 to January 3, 1997.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
John R. Pagano, Counsel
INTRODUCTION
The veteran had active military service from July 1967 to
April 1969.
This matter arises from an April 1997 rating decision
rendered by the Department of Veterans Affairs (VA) Regional
Office (RO) in Chicago, Illinois. Following compliance with
the procedural requirements set forth in 38 U.S.C.A. § 7105
(West 1991), the case was forwarded to the Board of Veterans'
Appeals (Board) for appellate consideration.
REMAND
This case is not yet ready for appellate disposition for the
reasons that follow.
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096, now codified at
38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2002),
that eliminated the well-grounded claim requirements,
expanded the duty of VA to notify the appellant and
representative, and enhanced VA's duty to assist an appellant
in developing the information and evidence necessary to
substantiate a claim.
VA issued regulations to implement the VCAA in August 2001.
66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at
38 C.F.R. § 3.159). The
amendments were effective November 9, 2000, except for the
amendment to 38 C.F.R. § 3.156(a) that is effective August
29, 2001. Except for the amendments to 38 C.F.R. § 3.156(a),
the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R.
§ 3.159(c)(4)(iii), VA stated that "the provisions of this
rule merely implement the VCAA and do not provide any rights
other than those provided in the VCAA." 66 Fed. Reg. 45,629.
First, VA has a duty to notify the veteran and his
representative of any information and evidence necessary to
substantiate and complete a claim for VA benefits. See VCAA,
Section 3(a), (codified at 38 U.S.C.A. §§ 5102 and 5103).
Second, VA has a duty to assist the veteran in obtaining
evidence necessary to substantiate his claim. See VCAA,
Section 3(a) (codified at 38 U.S.C.A. § 5103A).
The United States Court of Appeals for Veterans Claims
(Court) held in Holliday v. Principi, 14 Vet. App. 280 (2001)
that the VCAA was potentially applicable to all claims
pending on the date of enactment, citing Karnas v. Derwinski,
1 Vet. App. 308 (1991). Subsequently, however, the United
States Court of Appeals for the Federal Circuit held that
Section 3A of the VCAA (covering the duty to notify and duty
to assist provisions of the VCAA) was not retroactively
applicable to decisions of the Board entered before the
effective date of the VCAA (Nov. 9, 2000). Bernklau v.
Principi, 291 F.3d 795 (Fed. Cir. 2002); See also Dyment v.
Principi, 287 F.3d 1377 (Fed. Cir. 2002). In reaching this
determination, the Federal Circuit appears to reason that the
VCAA may not apply to claims or appeals pending on the date
of enactment of the VCAA. However, the Federal Circuit
stated that it was not
reaching that question. The Board notes that VAOPGCPREC 11-
2000 (Nov. 27, 2000) appears to hold that the VCAA is
retroactively applicable to claims pending on the date of
enactment. Further, the regulations issued to implement the
VCAA are to be applicable to "any claim for benefits
received by VA on or after November 9, 2000, the VCAA's
enactment date, as well as to any claim filed before that
date but not decided by VA as of that date." 66 Fed. Reg.
45,629 (Aug. 29, 2001). Precedent opinions of the chief
legal officer of the Department and regulations of the
Department are binding on the Board. 38 U.S.C.A. § 7104(c)
(West 1991). For
purposes of this determination, the Board will assume that
the VCAA is applicable to claims or appeals pending on the
date of enactment of the VCAA.
This matter arises from a claim filed prior to the effective
date of the VCAA. It was certified to the Board for review
in November 2002. The record does not show that the RO
provided notice to the claimant and his attorney of the VCAA,
including the
division of responsibilities between VA and the claimant in
obtaining evidence, either by a notice letter of its own or
by adopting a copy of the recommended VCAA notice letters
provided by the Veterans Benefits Administration. Nor has
the RO addressed how the VCAA was satisfied. See Bernard v.
Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92
(July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)).
Accordingly, this case is REMANDED for the following:
1. The veteran may submit additional
evidence and arguments in support of his
claim. Kutscherousky v. West, 12 Vet.
App. 369 (1999).
2. The RO must review the claims file
and ensure that all notification and
development action required by the VCAA
is completed.
3. Upon completion of (1) and (2) above,
but not contingent upon whether any
additional records are obtained, the RO
should readjudicate the veteran's claim
of entitlement to a temporary total
disability rating pursuant to 38 C.F.R.
§ 4.29 because of hospital treatment in
excess of twenty-one days for a service
connected disability during the period
from December 6, 1996 to January 3,
1997..
4. If the issue on appeal remains
denied, both the veteran and his
representative should be furnished a
supplemental statement of the case. They
should also be afforded the appropriate
time period in which to
respond, at their option, as provided by
governing regulation.
Once the foregoing has been accomplished, the case should
be returned to the Board for further appellate
consideration. The purpose of this REMAND is to accord
the appellant due process of law. The Board intimates no
opinion regarding the final disposition of the claim.
_________________________________________________
RICHARD B. FRANK
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).